Arbitration & Litigation Support

Quick question:How good is your self-defense program if the people you work with have never been in a fight?Answer:Excellent! You’re batting 1.000!

As with any fight, the best way to guarantee victory is to avoid the fight in the first place. To the best of our knowledge, standards developed by FitForce have never been challenged. Our experience is that all too often what gets agencies into trouble is not the nature of a validation study or even its findings but rather the practices that agency engages in before, during, or after implementation.

This suggests two things:

The fear of litigation that holds many agencies back from pursuing standards may be overstated; And

The more difficult task may rest with the agency in the implementation phase.

When we conduct a validation study for a client we provide guidance as to the implementation of the new program and standards. The most effective approach (and the one least likely to be challenged) is one that addresses all phases of employment from selection to retirement. This may require an overhaul of policies, procedures, job descriptions, employee performance evaluation as well as return to duty/disability decisions. We’ve identified some of the concerns below as well as some examples as to how FitForce may be of service to your agency.

Potential Concerns

Job relatedness means that the test score must be predictive of the ability to perform the essential functions of the job and be of business necessity. The test standard must be able to predict those who can do the job and those who can not. Norm-based standards, arising from any vendor or even in-house will fail the job relatedness requirement. This is due to the nature of norms - which only describe how a group of people performed on a particular test. In the absence of a validation procedure, even norms developed on an incumbent workforce are not predictive of the ability to the job, just descriptive of those in the job.

The inconsistent application of standards is perhaps one of the most common triggers to a challenge that we have seen over the years. One very specific example is applicant/recruit standards in the absence of incumbent requirements. For years, law enforcement has required some level of physical ability of the people who don’t have the job, but not those who do have the job. While we can’t say an agency will be challenged for this reason, it is our opinion, an agency is much better able to demonstrate that physical readiness is job-relatedness and consistent with business necessity when it has a fully developed program with career-long requirements.

Same job, same standard is essentially the effect of Section 106 of the revised Civil Rights Act.

"It shall be unlawful employment practice for a respondent, in the connection with the selection of referral of applicants or candidates for employment or promotion, to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race, color, religion, sex or national origin."

Again, norm-based standards, frequently those that are gender-adjusted require a hard look in light of Section 106.

Adverse Impact - Title VII of the Civil Rights Act of 1964 requires that an agency can not use a test standard that demonstrates adverse or disparate impact against a protected class unless the test standard is “job related”. Adverse impact is defined as a protected class passing a test at a less than 80% rate of the unprotected class. The key wording is that standards that show adverse impact can be used if there is data to show that the test standard is job related. A recent court case (Lanning vs. SEPTA, U.S. District Court of SE Penn 2000) clearly affirmed this.

It should be pointed out that many agencies attempt to anticipate the impact of standards by evaluating the current performance levels of incumbents against the proposed requirements. In response, administrators will abandon the implementation of the same standards by citing adverse impact. In fact, there is no adverse impact because there are no requirements. Our standing recommendation is to allow one to three years or more for the implementation of standards. That phase-in period allows for programming, evaluation, education, and support of employees to meet the new standards. Only then would there be an adverse impact. The current levels of incumbent fitness suggest a training need, not an adverse impact.

Inconsistent application of policies is another predisposing factor to litigation. Preferentially applying provisions of agency requirements are triggers to action under the Americans with Disabilities Act, CRA, and the Age Discrimination in Employment Act. The O'Fallon case is one example, although many exist at several levels.

Litigation Experience

Our technical advisor (Dr. Tom Collingwood) has served as an expert witness and provided expert testimony for several court cases involving fitness standards and programming.

The State of Arizona ex rel. Terry Goddard, the Attorney General, and The Civil Rights Division of the Arizona Dept. of Law v City of Cottonwood, and City of Cottonwood Police Department, No. C-2009-014365